Monash University Law Research Series
Last Updated: 6 March 2012
MAKING THE WORLD SAFE FOR HOLLAND: DE INDIS OF HUGO GROTIUS AND INTERNATIONAL LAW AS GEO-CULTURE
This paper was originally published in Volume 32 of Review, 2010, p. 239.
If the central thesis of The Savage Republic, my recently published
study on the relevance of world-systems analysis for the study of international
law, could be
expressed in a single sentence it would be that Hugo Grotius (1583-1645) wrote
his seminal early text De
Indis as part of
a systematic intellectual effort to make the world safe for Holland. I very much
understand Grotius’ project in
terms of the conceptual framework of
world-systems analysis; that Holland, or the United Provinces (the UP), as the
of the 17th century, deliberately
strove to re-constitute international public order along lines most consistent
with this hegemony.
The phrase ‘making the world safe for Holland’, therefore, bears a
double meaning. In intrastate terms, it signifies
the re-configuration of the
modern world-system along the lines of the domestic constitutional arrangements
of early Dutch
interstate terms, it marks the first systematic effort to subordinate the
entirety of the early, or mercantilist, modern world-system
to an international
rule of law derived from ‘naturalism’, or natural law (ius
naturale). Furthermore, my reading of Grotius’ text as the juridical
expression of Dutch hegemony in terms consistent with world-systems
necessarily relies upon the three-tier division of Braudelian TimeSpace. As the
sub-title of my book implies, the political
biography of the author and the
material composition of De Indis constitute the history of ‘the
The broader historical framework of Dutch hegemony corresponds to the history of
‘the conjuncture’ (histoire conjuncturale). The over-arching
historical phenomenon of the modern world-system equates to the history of
‘structure’ (histoire structurale), the long wave of temporal
flow that is the qualitatively distinct TimeSpace domain of la longue
duree. By writing all three parallel chronologies and by transversing all
three waves at tactically specific junctures, I produced what
is, hopefully, a
coherent and unified work consistent with Fernand Braudel’s own
In fact, the three different time spans which we discern are all independent: it is not so much time which is the creation of our own minds, as the way in which we break it up. These fragments are reunited at the end of all our labours. The longue duree, the conjuncture, the event all fit into each other neatly and without difficulty for they are all measured on the same scale.
Undertaking an extended critical exegesis of an understudied Grotian text in terms of world-systems analysis forced me to substantially reconsider the relevance of Braudelian historiography. Simultaneously, the re-visitation of Braudel and the subsequent critical engagement with TimeSpace forced me to undertake a parallel critical re-appreciation of world-systems analysis and its relevance to critical international legal scholarship. This essay, following my earlier work in The Savage Republic, constitutes not merely a practical application of world-systems analysis to the early history of international law; it is also very much a critical and self-reflexive meditation on current developments within world-systems analysis and an open ended engagement with possible grounds for ‘strategic alliances’ with other forms of critical theory, including deconstruction and post-colonialism. This will be realized through a translation of the rhetorical stratagems of ‘primitive’ international legal discourse, posited here as a form of geo-culture, into the juro-political references and vocabulary of the early modern world-system. As I will prove, situating De Indis within the TimeSpace parameters of the ‘long’ 16th century not only undermines the intelligibility of the functional and teleological view of international law; it also demonstrates that understanding international law as a variant of geo-culture directly assists world-systems analysis in surmounting two of its chief methodological problems, determinism and reductionism.
International Law and Geo-Culture
It does not take long for anyone working with
contemporary world-systems analysis to recognise that the field is undergoing a
transition in theory and methodology, one that is of tremendous
relevance for critical legal studies and the history and philosophy
international law. Expressed in the simplest terms, world-systems analysis has
sought to un-encumber itself of the intellectual
legacy of its broadly
neo-Marxist origins; theoretical innovations in other fields—including
History, Philosophy, and Literary
Criticism—have forced world-systems
analysts to confront their intellectual heritage of teleology and functionalism.
world-systems analysis has had a complex and at times contradictory
relationship with historical materialism. Sympathetic critics
Wallerstein, such as Anthony Giddens, have clearly recognized this, labelling
world-systems analysis as a ‘generalized
critique of endogenous models of
A key part of Wallerstein’s approach depends on the idea that phenomena of basic importance to capitalism including its class system—cannot be interpreted in ‘internalist’ terms but have to be understood in the context of the world economy as a whole. When ‘capitalism’ is seen to refer to the world capitalist economy, we see that it does not involve a single axis of class domination, but two. One is that of wage-labour and capital. But this dimension has from the early origins of capitalism been interwoven with the spatial hierarchy in the ‘international’ division of labour, setting off core from periphery.
Accordingly, world-systems analysis is best understood as ‘an
interpretation that strongly emphasizes the regionalization of
economic systems and which, thereby, lays stress upon spatial features of social
a result, the ‘very term ‘international’ only has
full meaning with the emergence of nation-states which, because of their
character, give a very particular shape to
‘internal’ versus ‘external’
The problem here is obvious and takes two different forms, one for the Marxist scholar and one for the non-Marxist scholar. For the former, Wallerstein’s eclectic materialism effectively bars him from formulating a persuasive, or even coherent, theory of state formation. If the ‘State’ is both the product and the instrument of class forces, then in order for there to be the historical genesis of a ‘modern world-system’ of States within the 16th century, there would necessarily have existed a ‘class’ that was both global and capitalist which, in the general Marxist view, was simply not the case. For the Marxist, Wallerstein’s efforts depend upon a simplistic crypto-Weberian ‘circulationism’: capitalism equals exchange for money. Neither Wallerstein nor Andre Gunder Frank can demonstrate the existence of a capitalist global class prior to the nineteenth century. Instead, they are reduced to surreptitiously recruiting amorphous worldwide trading networks to perform the function that would be undertaken by the (absent) capitalist world class or ‘State’. For the latter, world-systems analysis is irredeemably reductionist: ‘Wallerstein’s arguments involve an uncomfortable amalgam of functionalism and economic reductionism. In these respects [despite the neo-Weberian overtones] they are certainly closer to commonly held presumptions of Marxism.’ Hence
[T]he marked tendency of Wallerstein’s standpoint to downplay the impact of specifically political and military factors upon processes of social change in the modern world. States appear as territorial subdivisions within gross economic sectors of the world economy, not as organizations able to mobilize other forms of power other than economic power and with interests other than economic interests.
In recent years world-systems analysis has offered a spirited rejoinder to
both sets of critique. Against the Marxist, Wallerstein
has repeatedly offered a
robust defence of circulationism as a valid conceptual model for capitalism as
well as providing the more
accurate account of the nature of the early
a more theoretically abstract level, and of much greater importance to
Wallerstein’s more recent work, has been the wholesale
repudiation of the
innate teleology of the classical nineteenth-century theories of state and class
formation that is replicated
by orthodox Marxist scholarship. I am almost
compelled to label this development as ‘the return of Braudel’:
own rediscovery of the enormous potential for social science
provided by Braudel’s post-classical theory of TimeSpace, derived
radically anti-teleological approach to geo-spatiality. Of vital importance was
Wallerstein’s signature notion of the
‘axial division’ of the
world-system. Infused with Braudelian notions of TimeSpace, world-systems
analysis was able to
formulate a thoroughly anti-reductive—in fact, almost
relativistic—notion of the ontological correspondence between the
plurality of ‘spaces’ and the plurality of cultural systems
social structures. For Wallerstein
Rejecting [the] nineteenth-century view was a crucial step in the development of world-systems analysis. The classic liberal-Marxist view was based on a [teleological] theory of stages of development that occurred in parallel ways in units of analysis called states (or societies or social forms). It missed what seemed to us the obvious fact that capitalism in fact operated in a system in which there were multiple modes of compensating labor, ranging from wage labor, which was very widely used in the richer, more central zones, to various forms of coerced labor in the poorer, more peripheral zones (and in many other varieties in between). If one did one’s analysis state by state, as was the classical method, it would be observed that different countries had different modes of compensating labor and analysts could (and did) draw from this the conclusion that one day the poorer zones might replicate the structure of the richer zones. What world-systems analysis suggested was that this differential pattern [axial division] across the world-economy was exactly what permitted capitalists to pursue the endless accumulation of capital and was what in fact made the richer zones richer. It was therefore a defining structural element of the system, not one that was territorial or archaic.
Not surprisingly, we have witnessed in recent years a series of widening
bilateral discussions taking place between analysts such
as Wallerstein and
Giovanni Arrighi with their ‘post-‘ or ‘open’ Marxist
counterparts, most notably Etienne
Balibar and David Harvey. Of even greater
importance, however, has been what I might call ‘the epistemological
undertaken by world-systems analysis. As Wallerstein’s own
work makes clear, the axial division of layer creates a globally
‘social space’ in which differential relationships of labor and,
therefore, localizable systems of social value
and cultural meaning, may emerge
and co-exist—separate in space but concurrent in
time. And this, in
turn, raises the possibility of the radical relativisation of knowledge within
the world-system. Wallerstein’s
own writings evidence this
‘epistemic turn’ through their recent prioritisation of geo-culture,
the generic de-notation
of the manifold, and at times contradictory, ideological
and legitimation apparatuses of the modern
very broad terms, Richard Lee has remarked upon world-systems analysis’
evolving concern with what he calls the ‘third
epistemologically unifying domain
[O]f cognition and intentionality, giving to the long-term cultural domain the same structural centrality that production and distribution, the economic, and coercion and decision-making, the political have long enjoyed. The objective is to connect the ideal and the material in the sense that there is a structure of knowledge of historical capitalism (most basically, the divorce of facts and values) that shapes what actions are at any time considered to be legitimate and effective; who it is thought can act and what it is thought they can do. Categories get constructed, naturalized, and essentialized. Not only do we have to re-historicize these continuities, we need to see how they have functioned, especially how [the] unwritten (cheap) consensus [has operationally prevailed] over (expensive) coercion in the process of the accumulation of surplus over the past five centuries.
There is clearly a ‘double movement’ at work here:
world-systems analysis moves beyond a reductive materialism and functionalism
through investing geo-culture with an autonomous causality. Conversely, the
modern word-system itself, the primary unit of analysis,
is understood to
constitute a pluralistic society of relativistic
complexes and structures; as a result, the epistemology of the analyst
‘must be both nomothetic and idiographic, or rather
it can be
Lee has elaborated at great length on this point.
The future is determined by present agency from materials of the past, but its structure remains unpredictable. The world-systems perspective radically reinstates history into the study of social change on a world scale, without however reinventing ‘total history’. Radical because...world-systems analysis repudiates the premises of nineteenth-century social science. Change of conjuctures is embedded in longue duree structures (cycles with trends). By positing a unique, temporally bounded, and spatially delimited (but expanding) social system defined by the axial division of labour as the coherent unit of analysis, it respects both idiographic particularism and nomothetic universalism... Process is the watchword; being is always becoming.
If ‘re-historicizing’ is the term that Lee uses to denote
world-systems analysis’ post-Marxist shift from the macro-level
with structure to the micro-level domain of the ‘event’—the
contingent, the immediate, the local—then
I would suggest that what we are
observing here is a tentative engagement with
Wallerstein has made this move explicit through his new emphasis upon the
centrality of contemporary ‘knowledge movements’,
identifies, somewhat imprecisely, with ‘deconstruction, postmodernism,
postcolonialism, poststructuralism, [and] cultural
Lee has made a similar identification of ‘convergent interests’
between world-system analysis and deconstruction.
The postmodern makes sense only in relation to the modern—that is, to those processes guaranteeing the primacy of endless accumulation; and to the modernist consciousness in the form of the concepts of progress, chronological historical time, and representational realism (where a turning point was reached with the invention of perspective in the fifteenth century at the beginning of the history of the modern world-system).
For the world-systems analyst, ‘post-structuralism’ may best be understood as a foundational ‘turn’ within post-Marxist critical theory towards a heightened self-reflexivity grounded upon a privileging of the textual, the discursive, and the literary as the ‘primary unit of analysis’. Post-Structuralism’s self-conscious emphasis upon the inherent politicisation of all forms of language compels it to focus upon the historical preconditions governing the production and ‘policing’ of discourse. Inverting the teleological impulses of classical nineteenth-century social theory, post-structuralism advances a theoretical understanding of the political nature of all speech as an historically embedded enterprise that both elides and supersedes the deterministic and reductive logic of Marxism. At first glance world-systems analysis and ‘deconstruction’ would appear to be antinomies, the former asserting the primacy of structure and the dominance of the center over the periphery as against the latter’s anarchic subversion of all totalising systems of meaning. In many ways the relationship between the two replicates the inherent tensions between structuralism and post-structuralism. World-systems analysis, as a form of historical sociology, always runs the risk of acting as an essentializing discourse insofar as it prioritises structure, primarily at the expense of the event; as Braudel usefully reminds us, nomothetic social science ‘is virtually horrified by events. Nor is this without reason: short time is the most capricious, the most deceptive duration.’ However, it is this self-same ‘structuralism’ that makes world-systems analysis a viable form of historical sociology in the first place; indeed, without making the claim too strongly, it is the systematic translation of the basic precepts of Braudelian historiography into the terms of a practical research agenda. And it is the very ‘neo-Braudelian’ nature of this research agenda that points to certain overlapping areas of concern and broad similarities of approach between the two schools that would at first evade the attention of the casual observer, not the least of these a latent anti-essentialism. For Wallerstein, the ‘meaning’ of every State is exhaustively defined by its position vis-à-vis every other State within the entirety of the world-system, a mutually constitutive process of identity formation. Although thoroughly integrated, the world-system, precisely because it is premised upon the absence of centralizing political structures, is radically de-centralized. As with deconstruction, world-systems analysis rejects the totalising logic of a unified (and unifying) ‘self’ or ‘subject’, preferring instead a radically polycentric model of intestate relations. Hegemony is the antithesis of empire; the world-system ‘lacks a central actor in its recounting of history.’ In marked contrast to other theories that prioritise a particular set of actors, such as the proletariat for Marxism or the Nation-State for Realism, world-systems analysis postulates that all international actors
[J]ust like the long list of structures that one can enumerate, are the products of a process. They are not primordial atomic elements, but part of a systemic mix out of which they emerged and upon which they act. They act freely, but their freedom is constrained by their biographies and the social prisons of which they are a part.
Wallerstein’s sentiments accord remarkably well with Jacques
Derrida’s post-Sausserean ruminations on langue et parole, in which
the singular unit of meaning is governed solely by its position within a complex
chain of other signs and
surprisingly, then, we witness recurrent attempts by Wallerstein to personally
engage with deconstruction, or ‘cultural
studies’, a development
that seems to have been occasioned by his realization of the potential in
knowledge structures as contemporary forms of
Contrary to the views of its critics, Wallerstein writes
The fundamental intention of cultural studies is not a sort of nihilistic destruction of knowledge, the total solipsistic relativism peddled by a few extremists...[rather, it is to demonstrate the fact that] particularistic canons have been put forward as universal norms is a product of the unequal hierarchies of the modern world system, and has served to sustain those in power in this system.
The quest for a ‘strategic alliance’ with the new Critical
Theory, in turn, leads Wallerstein to undertake two additional
moves. First, he
shifts his concern to the epistemic problem of Universalism, the meta-narrative
level totalising of Modernity as
a global discursive formation; ‘Among the
specificities of the capitalist world-economy was the development of an original
epistemology which it then used as a key element in maintaining its capacity to
against the legion of apologists for modernity, Wallerstein argues that
‘Universalism is always historically
The contingent, or ‘constructed’, nature of Universalism underpins
Wallerstein’s second move: the entry into dialogue
with the amorphous
discourse known as post-colonialism, which serves as a vital link between
world-systems analysis and
Post-colonial discourse acts as a transverse mode of critique of an
international order, both public and private, operating within
traces of European imperialism; expressed in terms of the world-system, this
means the forcible transformation of
the non-European regions into a global
periphery and semi-periphery to the core zone of western Europe.
Post-colonialism provides the discursive space within which I situate my own deconstructive critique of De Indis. ‘All systems are historic, and all of history is systematic’; ergo, world-systems analysis ‘is indeed a grand narrative.’ World-systems analysis aids the critical legal scholar by providing him or her with a viable form of ‘grand narrative’, compatible with post-colonialist critique, within which to embed their deconstructive work against orthodox, mainstream, or ‘liberal’ accounts of international law. According to Wallerstein
When we return to grand narratives, we face two different questions, it seems to me. One is to assess the world, I would say the world-system, in which we are living, and the claims of those in power to be privy to, and implementation of, universal values. The second is to consider whether there are such things as universal values, and if so, when and under what conditions we might come to know them.
For the analyst, like the post-structuralist, to be against ‘the
concept of timeless [essential] structures does not mean that
structures do not
Rather, the philosophically savvy analyst, invested with deconstructive insight
and sympathetic to the broad objectives of the post-colonialist
operate within a zone of highly self-critical philosophical reflexivity and
successfully navigate the rhetorical migrations
essentialism’ and ‘chaotic
This results in a second ‘double movement’, forcing the analyst to
carefully circumvent a counter-essentialist ‘anti-euro-centric
euro-centrism’. Hence, Wallerstein’s call, following Edward Said,
for the analyst to be ‘non-Orientalist’.
To be non-Orientalist means to accept the continuing tension between the need to universalise our perceptions, analyses and statements of values and the need to defend their particularist roots against the invasion of the particularist perceptions, analyses, and statements of values coming from others who claim that they are putting forward universals. We are required to universalise our particulars and particularize our universals simultaneously and in a kind of constant dialectical exchange, which allows us to find new syntheses that are then of course intently called into question. It is not an easy game.
But it is a ‘game’, and a decidedly post-Marxist one; no final resolution of antitheses here. The entire basis of the attractiveness of post-colonialism to the critical legal scholar lies precisely in its potential to deconstruct the entirety of the multiple linkages between international law-as-discourse and international law-as-European-imperialism. For post-colonialism, the western State is incorrigibly imperialist; ergo, the historical emergence of international law is synonymous with the wider process of empire-formation. The crucial point here for the notion of international law as geo-culture is that empire-formation is not merely an exercise of material power but equally one of power-knowledge, deploying its own taxonomy, vocabulary, schema, nomenclature, and rhetoric.
International law, therefore, is a particularly ripe target of the sort of deconstructive critique undertaken by both world-systems analysis and post-colonialism. International law as a variant of geo-culture is revealed immediately through critical reconsideration of the role played by legitimacy and the various discourses of legitimation in securing what we conventionally refer to as ‘international public order’, the juro-political phenomenon of a hegemonically driven form of interstate relations. As ‘cost efficient’ hegemony ultimately devolves upon the volitional consent of the manifold sovereigns, the ideological compliance and ‘coercive socialization’ of the members of the global community become indispensable to the practical operations of the modern world-system. An uncommonly naked example of this, and of the pronounced functionalism of international legal discourse, is the work of the liberal apologist Thomas Franck, who artfully enfolds functional jurisprudence into normative liberal governance.
That international ‘law’ is not law in the positivist sense may be irrefutable but is also irrelevant. Whatever label attached to it, the normative structure of the international system is perfectly capable of being studied with a view to generating a teleological jurisprudence. Indeed, international law is the best place to study some of the fundamental teleological issues that arise not only in the international, but also in the national legal systems.
Franck has identified the four primary indicators of what he identifies as ‘rule legitimacy’ within the international community as ‘determinacy, symbolic validation, coherence and adherence to normative hierarchy.’ As should be clear by now, what Franck’s sanitized view of international law obviates is precisely what a critical legal scholar such as Martti Koskenniemi posits as essential: asymmetrical relationships of political power. For Franck
The special value to both national and international jurisprudential inquiry of studying the international system...lies in its unalloyed noncoercive state...A teleology that makes legitimacy its hypothetical center envisages...the possibility of an orderly community functioning by consent and validated obligation, rather than by coercion. This is surely the realistic approach to an international jurisprudential teleology: one that examines the objective properties of the global rule system so as to study whether and how it may advance or perfect itself in accordance with the propensities of those observable properties.
For Koskenniemi, however, international law is a ‘process of articulating political preferences into legal claims that cannot be detached from the conditions of political contestation in which they are made.’ In language that is bound to appeal to the world-systems analyst, Koskenniemi openly identifies international law with hegemony, affording what is in effect a re-definition of international law as the geo-cultural expression of ‘hegemonic contestation’.
By ‘hegemonic contestation’ I mean the process by which international actors routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents. In law, political struggle is waged on what kind of words such as ‘aggression’, ‘self-determination’, ‘self-defense’, ‘terrorist’, or jus cogens means, whose polity will they include, whose they will oppose. To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their political view of that meaning appear as the total view, their preferences seem like the universal preference.
The diverse and variegated linkages that can be established between
international legal discourse and the political praxis of legitimacy
Koskenniemi to perform a deconstructive critique of the universalist pretensions
of international law that uncannily resemble
Wallerstein’s critique of
universalism as the epistemological foundation of geo-culture.
In political terms, this is visible in the fact that that there is no representative of the whole that would not be simultaneously a representative of some particular. ‘Universal values’, or the ‘international community’, can only make themselves known through the mediation by a state, an organization or a political movement. Likewise, behind every notion of universal international law there is always some particular view, expressed by some particular actor in some particular situation. This is why it is pointless to ask about the contribution of international law to the global community without clarifying first what or whose view of international law is meant. However universal the terms in which international law is invoked, it never appears as an autonomous and stable set of demands, over a political actors, as a way of dressing political claims in a specialised technical idiom in the conditions of hegemonic contestation.
The world-systems dimension of international law as hegemonic geo-culture places it at the centre of the juro-political process of global governance, the accumulative structural asymmetries of the liberal world order masquerading under the universalist ‘neutrality’ and ‘objectivity’ of the international rule of law. As my exemplar text De Indis makes clear, the Grotian discourse of international law directly equates to the phenomenon of Dutch hegemony in each of the three domains of Braudelian TimeSpace: event, conjuncture, and structure.
Event, Conjuncture, Structure: De Indis and TimeSpace
It is one of the central, and most revealing, conceits of international law that its ‘father’, or seminal, figure is also the ‘author’ of an entire legal tradition traditionally known as the ‘Grotian Heritage’. This generic term signifies a set of outstanding concerns within the governance of international public order, including peaceful dispute resolution, multi-lateralism, humanitarian intervention, and universal human rights—in essence, liberalism as geo-culture. The notion of the Grotian Heritage as either inherently liberal or pacifistic constitutes an egregious example of ideological mystification. Consistent with his overall purpose of legitimising the Dutch Revolt against Spain (1555-1609) as a lawful act of national liberation, Grotius’ central juridical concern was to re-formulate the late medieval tradition of ‘just war’ (bellum iustum) as a governing principle ideally suited to the legal contours of the early modern world-system. In analytical terms, the genesis of the Grotian Heritage is little more than the authorial superimposition of the interstate constitutional arrangements of the nascent Dutch Republic, effected through a systematic conflation of early international law (iure gentium) with Roman civil law (ius civile). The historical emergence of Grotian discourse proves inextricable from the unique contours of the hegemonic contestation of the ‘long’ 16th century. Accordingly, the three domains of TimeSpace—event, conjuncture, structure—will govern my reading of De Indis as the bearer of the signs of the legal text as the medium of liberal geo-culture: symbolic validation, coherence, determinacy and normative hierarchy.
The Event: Symbolic Validation
The composition of De Indis (1603-1608) was prompted by the privateering of the Portuguese carrack the Santa Catarina in the Strait of Malacca on 25 February 1603 by the Dutch admiral Jacob Heemskerck, Grotius’ own cousin. The total value of the prize was in excess of three million Dutch guilders. The seizure of the carrack itself may have served as the immediate cause of the formation of the Dutch East Indies Company (the VOC), the joint-stock corporation serving the politically useful function of coordinating the smaller, disparate and less efficient privateering operations of independent provincial Dutch traders. Apart from facilitating intrastate formation within the allegedly ‘united’ Dutch provinces, the incorporation of ‘the Company’ heralded a new phase in Luso-Dutch interstate rivalry, marking a shift in Dutch naval tactics from purely defensive to largely aggressive military and para-military operations. That same year, VOC captain Steven van der Hagen was ordered by the Company to suspend purely mercantile operations and initiate military action against both the Portuguese and Spanish vessels, and to open diplomatic communiqué with all indigenous authorities in vital port and coastal regions (Cambay, Calicut, Dubhol, Kandy) who might be interested in entering into an anti-Iberian military alliance. From 1606 until 1609, with the entry into force of the Twelve-Year Armistice with Spain, all VOC admirals were expressly instructed by Jan Company ‘to enter into military alliances and contracts with as many local princes as possible and to offer military assistance to those who wanted to drive the Portuguese out.’ Not only did the VOC create an entire network of collaborationist local rulers (‘compradors’) the Company effectively monopolised the exercise of all formal Dutch state-action within the Indian Ocean world economy.
Although there is no general consensus concerning the authorial motive for composition, De Indis is generally interpreted as a legal brief legitimating the seizure of the Santa Catarina. Until recently, the text has been viewed as doubling as an extended reasoned exercise in moral suasion against the powerful bloc of Anabaptist and Mennonite shareholders whose theological pacifism led them to question the legitimacy of privateering as a means of furthering otherwise acceptable endless capital accumulation. It appears more likely that the composition of De Indis was not centred upon the parochial objective of legitimating privateering per se, but upon the wider act of apologia; providing symbolic validation of the United Province’s shift towards maritime predation as a calculated strategy of a hegemonic contestation between two States. Indeed, it is precisely because the author was so thoroughly embedded within a singular event within the contours of the modern world-system that Grotius’ performance of symbolic, or even ‘mythical’, self-validation may be so easily perceived.
The mythical fabric of international culture permits [all] sovereigns to assert international law without defending its national authority. Self-validation occurs through the manipulation of cultural language, symbols and history. In this cultural soup, myth can acquire a flavour of legitimacy capable of producing psychological obligations in sovereigns. Symbolic authority can be conferred on international rules and institutions in many ways. Rulers may be validated through ritual. Institutions may be validated through architecture, transferred authority (like famous leaders) or other cultural attention. Alternatively, rules and institutions may become authoritative because of their pedigrees, their ‘historical origin’ and cultural ‘deep-rootedness’. International Law’s weaknesses are in some sense irrelevant; self-validation sanctions the international law-myth.
Herein, the liberal re-presentation of unequal hierarchies of power as
‘legitimacy’ does indeed serve a functional or
Liberal ideology makes political choice look either like unquestionable ‘natural’ law or logical compulsion. In this sense it mystifies and obfuscates the international order it has established. Both the anthropological and ideological theories make sense of international law’s authority by showing the manner in which sovereigns self-validate international law. Liberal ideology provides sovereigns with a self-validating escape from the need to reason to their acceptance of international law’s authority. Sovereigns embrace the purported naturalness and coherence of an ethical theory that is sovereign-centric. In turn, this allows them to believe in the neutrality of the liberal theory of politics and the liberal theory of adjudication. Sovereigns thus come to accept the authority of international law and the rule of law as a neutral, determinant, and coherent system, when, in fact, it is none of those things.
Both the composition of De Indis and the later significance awarded
it as a landmark of international legal discourse are inextricable from the
transformation of the modern world-system: the shift of the
European core zone from Lombardy/Mediterranean to the northwest/Atlantic,
the self-aggrandizing transition of regionally bounded sub-system to the
globally encompassing capitalist
However, ‘new’ intra- and interstate systems were wholly derivative
from an earlier heterogenous system of sovereign
personalities. The political landscape inhabited by De Indis is a
profoundly alien one by contemporary state-centric standards, with its
exhaustive identification of legal personality with national
agency. By 1500,
Europe consisted of a multiversum of competing sovereign forms: the
Papacy, the city-
the imperial free-city
states, the Holy
feudal principalities (for example, the Duchy of Burgundy), and the
‘international’ regulatory and joint-stock trading
companies. All of
these followed a strict logic of non-territoriality and none of which were
easily reconcilable with the modern
requirements of ‘statist’
structure. In this regard, the arguably ‘pre-modern’ nature of the
Grotian text is
the faithful reproduction of contemporary international
‘main “source” of the Grotian system is to be found in the
author’s experience of international relations
and his extensive knowledge
of contemporary diplomatic
It is also of decisive importance that all four—the ‘failed’ Iberia and the wholly ‘successful’ UP, UK, and the USA—have been predominantly maritime powers; ‘the modern world system is, characteristically and importantly, an oceanic system.’ There appears to be a necessary historical correspondence between successful naval mastery and effective interstate hegemony. As the prototype of Venice clearly demonstrated, thalassocracy has proven most competitively cost-efficient and profit maximizing.
The most significant achievement for each [Nation-State] on the road to hegemony was primacy in productive efficiency within the World-Economy. One of the reasons each was able to achieve this superiority was the fact that it had not invested heavily during [the pre-hegemonic period] in creating a large army. However, each had created a large merchant marine which, in addition to its obvious economic function, supported the ability of this state to sustain a large naval force. It is indeed probably the case that a key factor in the ability of the state that won out in the struggle to achieve hegemony (won out against its major rival) was the fact that it had not invested in a large army.
Philip E. Steinberg has employed the intriguing term of
‘force-fields’ to signify the taxonomic classification of oceanic
space as a material foundation of international public order: ‘the sea was
an area for collecting and projecting social power
but it was not treated as a
space of value (or place) in its own
absence of a (relatively) large army was not only cost-effective (re. Venice),
but it permitted surplus value to be more profitably
re-invested in a blue water
fleet, itself an indispensable military prerequisite to assert hegemonic control
over international transit
routes, the material sinews of the
is significant that De Indis is centred upon a sustained dual discussion
of both bellum iustum (‘the just war’) and mare
liberum (‘the free seas’), the two foundational pillars of
international law. While all of the other early legal scholars tend
to focus on
either one or the other (predominately the former), it is only Grotius who
authors a text that expressly synthesized
the two domains. In a deeper sense,
bellum iustum and mare liberum actively enter into a highly
symbiotic relationship: the need to protect the freedom of the high seas itself
serves a legitimate
grounds for the just war; lawful warfare is necessary to
preclude Portugal’s imposition of mare clausum (‘the closed
seas’). The discursive necessity of subjugating oceanic diversity to
juridical uniformity underlined the
universal transposition of European
bellum iustum to international order now guaranteed by the
‘true’ hegemon Holland whose status is symbolically validated by its
seizure of the Santa
De Indis, therefore, is the textual site of the discursive re-production of the international political dynamic of a world-system hegemon committed to ceaseless capital accumulation and global naval supremacy, the oceans itself constituting an indispensable geo-spatial correlative of the world-economy. The high seas serve as the medium for the successful projection of hegemonic sea power, the naval armature policing the politically enabling myriad networks of the world-economy. Conversely, the high seas act as a conduit for long-reach maritime commerce and traffic, the economic sinews of the world-system, which both subsidises and encourages further hegemonic penetration into various regional sub-systems. This point was not lost on Grotius.
I know that the very foundations of... Iberian power lie, not in the Low Countries nor in Spain, but in the transoceanic regions from which the said people derive their wealth and the means to maintain their public largess and their wars. But I also know that they have gained for themselves in those distant lands as much hatred as power, and that the Dutch ought to make use of that hatred if they wish to see the war ended. The North must unite with the farthest Orient, in order that the despotism which has spread to every quarter of the world may be overthrown.
With remarkable prescience, Grotius recommends the intentional bankrupting of
the Habsburg world-empire as an integral part of Dutch
In [the] future, [the Spanish] will provide us perforce with similar spoils, an alternative which obviously would result in tremendous benefits both for our state and for our private citizens, or else they will be obliged to turn from their attacks upon others in defence of themselves, keeping innumerable ships for their own protection in East Indian waters, strengthening their colonies with fortifications, and (most troublesome of all!) maintaining a suspicious vigil overall things at one and the same time. The numerous and heavy expenses thus to be incurred will drain away not only all the private profits of the Portuguese, but also the whole of the East Indian revenue accruing to their state itself, the unwavering enemy of Dutch liberty. One can readily perceive how extremely profitable both of these consequences will be for our own state. For everyone knows that money constitutes the sinews of war and that, just as it is of the greatest importance [in war] to supply oneself with money, so the precaution of next greatest importance is to prevent the foe from being supplied with it. Accordingly, if all the produce and revenue from Philip’s East Indian possessions can be encumbered with a burden of expense equal to that already laid upon certain European possessions of his, it must surely follow that the future management of the war will prove much easier for us. For no one can doubt that the aid received from Spain through Italian transactions is the chief means of prolonging that war, inasmuch as the Dutch would long since have brought the affair to a conclusion if their resources had been matched solely against the revenue derived from another part of the Low Countries. If, then, Spanish revenues fail—and with them, the credit necessary to procure additional funds—what outcome is to be expected other than a military insurrection leading to a great revolution?
Finally, De Indis served as the necessary template for the re-presentation of international juro-political relations through the world-system’s medium of hegemonic transition. The internal logic of the interstate political system discursively governing the outward expression of international legal language can be shown, as praxis, to be one of hegemonic rivalry and exploitative domination, the instrumental reason of military conflict, monopolistic economics, and unlimited capital accumulation. In terms of discourse, not only does Holland master the oceans, its mastery is both the precondition and the result of the Republic’s strict conformity with the legal requirements of just war. Simultaneously, the republican UP, as both the law-making and law-enforcing State, is both practically and rhetorically committed to the freedom of the seas, a totalising act of symbolic validation that establishes the identity of the Republic as the true hegemon in contrast to the failed hegemony of Iberia.
Conjuncture: Coherence and Determinacy
The establishment of the material conditions
governing the emergence of the statist forms of territoriality and capitalism is
to the world-system as it is to both the Grotian Heritage and to
Only the modern world-system (the capitalist world-economy) has evolved a political structure composed of states, each of which claims to extensive ‘sovereignty’ in a delimited geographical area, and which are collectively bound together in an interstate system. Such a political structure is in fact the only kind of structure that can guarantee the persistence of the partially free market which is the key requirement of a system based on the ceaseless accumulation of capital. Capitalism and the modern state-system were not two separate historical inventions (or conceptions) that had to be fitted together or articulated with each other. They were obverse sides of a single coin. They were both part of a seamless whole. Neither is imaginable without the other. They were simultaneously developed, and neither could continue to exist without the other.
The internal political logic of this interstate societas is, in turn,
governed by the seminal notion of hegemony.
Hegemony is what occurs in a world-economy, one that has not become a world-empire. The political superstructure of a world-economy is not a bureaucratic empire but an interstate system composed of allegedly sovereign states. And a hegemonic state is not simply a strong state, nor even simply the strongest single state within the interstate system, but a state that is significantly stronger than other strong... states.
The last point needs to be re-emphasised; a central tenet of world-systems
analysis is precisely that ‘the emergence of a world
market was dependent
on the pluralistic structure of the European (and, subsequently, the global)
we shift our focus of analysis from the event to the conjuncture, we are able to
detect a parallel shift in the operation of legal
geo-culture from symbolic
validation to coherence and determinacy. By coherence I mean the capacity of
international law to achieve
a degree of self-grounding legitimacy as measured
by its capacity to afford juridical expression to the wider social system within
which it is embedded. In other words, the coherence of international law is the
sign of its virtually ‘organic’ relationship
with the contours of
the international juro-political landscape, law and society co-joined through a
symbiotic process of mutual
Wilhelm G. Grewe has placed the concept of hegemony at the centre of his magisterial legal history, The Epochs of International Law. Grewe folds international law into the juro-political act of the legitimation of hegemonic interstate relations, virtually reducing it to the epiphenomenal. Hegemony is inseparable from the broader juridical construction of ‘legal order’, the ‘normative image of a natural state of order’, exhibiting both utopian and apologist characteristics.
The totality of diverse legal rules deserves to be called a legal order if it deals with the totality of facts needing to be regulated legally in a manner which corresponds to the specific intellectual, cultural, social and political situation in question and which establishes directions for existing in this situation. In other words, the principal context in which individual legal rules and institutions are found is not logical, but morphological.
Crucially, hegemony is not identical with Empire, which implicitly
presupposes a monist juro-political regime. Rather, hegemony is
expressly pluralistic principles, reflected through the alternating
geo-political strategies of ‘domination’
‘influence’ (Einfluss), the later, because of its
predominately non-military nature, the more cost efficient of the
two. The complex
interplay between material and ideological factors parallels, in turn, a
concomitant rivalry among contending conceptions
of international legal order.
‘This order emerges in every age as a result of the struggle of the legal
and political ideas
and positions of the rival powers of that age, in which the
leading power succeeds in making its ideas and positions prevail and
recognition of their natural
The notion of hegemony as cultural Einfluss—or
geo-culture— renders its practical enforcement inextricable from
the wider process of juro-political legitimation.
Hegemony is... something more and different than domination pure and simple: it is the additional power that accrues to a dominant group by virtue of its capacity to lead society in a direction that not only serves the dominant group’s interests, but is also perceived by subordinate groups as serving a more general interest. It is the inverse of the notion of ‘power deflation’ used by Talcott Parsons to designate situations in which governmental control cannot be exercised except through the widespread use or threat of force. If subordinate groups have confidence in their rulers, systems of domination can be governed without resorting to force. But if that confidence wanes, they cannot... When such credibility is lacking, we shall speak of ‘dominance without hegemony’.
The agonistic pluralism of values, in turn, reflects a correlative plurality
of legal personalities.
In sum, an international legal order can only be assumed to exist if there is a plurality of relatively independent (although not necessarily equal-ranking) bodies politic which are linked to each other in political, economic and cultural relationships and which are not subject to a superimposed authority having comprehensive law-making jurisdiction and executive competence. In their mutual relations these bodies politic must observe norms which are deemed to be binding on the basis of a legal consciousness rooted in religious, cultural and other common values.
The ‘true’ hegemonic actor, in either statist or non-statist form, succeeds in achieving recognition as a ‘surrogate of sovereignty’, the sole agent capable of regulating global governance through its effective performance of the indispensable ‘anti-anarchical’ function.
There is a necessarily Foucauldian dimension to hegemony, as it exists
only through the successful exertion of material and ideological
against some oppositional force.
 By this logic, it stands that no
imperial system could ever be a ‘true’ hegemon; the abolition of all
and value systems would itself be identical with the
abolition of power. Hegemony, as the practical expression of international legal
order, requires a relative ‘dis-unification’ of geo-territorial
space(s), logically negating the existence of imperium. This, in turn,
serves as the juro-political corollary of the economic logic of the capitalist
world-system, which requires a disaggregated
political system: ‘the
imperial framework established political restraints which prevented the
effective growth of capitalism,
set limits on economic growth and sowed the
seeds of stagnation and/or
From Grewe’s perspective, the sub-text of the ‘Grotian
Moment’—alternatively, the ‘Spanish Epoch’
of the ‘long’ sixteenth century
(c.1450–1640)—consists precisely in the ultimate failure of
the Iberian powers to successfully attain ‘true’
through either the successful application of military force (Herrschaft)
and of ideological legitimation (Einfluss). As Wallerstein succinctly
summarises: ‘From the sixteenth century on, the nation-states of western
Europe sought to create
relatively homogenous national societies at the core of
establishment of the balance of power represented] the defeat of an attempt to
create political empires that would match economic
The crucial element missing from Grewe’s account, however, is an adequate
historical methodology; world-systems analysis provides
The contours of the capitalist world-economy establish the operational determinacy of historical causation. The determinacy of the world-system, therefore, directly corresponds to the determinacy of legal geo-culture: the expression of the constitutionality of the system on a level of analysis superior to that of the symbolically self-validating acts of the individual actors (Holland versus Portugal). In other words, the true legal identity of each individual actor is determined by its localizable position within the over-arching totality of the structured system. It is necessary to appreciate the nuanced interactions between the different levels of analysis at this ‘two-fold’ conjuncture: the macro-level of the interstate modern world-system and the comparative micro-level transformation of the pre-1500 European world system/sub-system. Prior to the rise of the modern world-system, Europe, like the other regional trading blocs of the world (the Indian Ocean; Ming China; Moghul India) formed a ‘sub-system’ or local ‘world’ economy of its own. The structural transformation of (western) Europe from a sub-system to a ‘true’ or ‘modern’ world-system was the replication on the interstate plane of the triumph on the micro-level of an ascendant form of early/pre-industrial capitalism over an entrenched feudal order. The ‘core’ of this sub-system was Lombardy, especially the principal city-states of Milan, Florence and, most importantly, both Genoa and Venice.
Parallel to this structural transformation was the shift away from traditional military and political patterns of ‘territorialism’ to a new configuration of state-war-market relations.
Central to [the European sub-system] is the definition of ‘capitalism’ and ‘territorialism’ as opposite modes of rule or logic of power. Territorialist rulers identify power with the extent and populousness of their domains and conceive of wealth/capital as a means or a by-product of the ‘endless’ pursuit of territorial expansion [T-M-T]. Capitalist rulers, in conflict, identify power with the extent of their command over scarce resources and consider territorial acquisition as a means and a by-product of an ‘endless’ accumulation of capital [M-T-M]... The differences between the two logics can also be expressed in terms of the metaphor of the states as ‘containers of power’. Territorialist rulers tend to increase their power by expanding the size of the container. Capitalist rulers, in contrast, tend to increase their power by piling up wealth within a smaller container only if it is justified by the requirements of the accumulation of capital.
Vital to the transformation of the European world system into the modern
world-system were an inter-locking set of institutional changes
within the core
states of the pre-modern system, initially centred in Venice, ‘the true
prototype of the capitalist state’,
which most successfully co-joined the
‘twinned’ activities of war- and state-making; that is, the
monopolistic capitalism of the oligarchic
compelled Venice to seek a more sustainable cost-benefit alternative to
territoriality. This was achieved through a dogmatic reliance
balance of power
the Communes effectively thwarting the expansionist ambitions of both the Empire
and the Papacy.
The complimentary reliance upon naval superiority and mercenary troops
underwrote a viable self-sustaining ‘protection-producing
enabling the transformation of organized forms of violence into a long-term
This final point appears even more self-evident when one realizes that the modern world-system is the practical realization of the material policing of the hierarchical divisions between the core and periphery.
The activities of the more productive nodes [of the world-system] have tended to be geographically concentrated in a few, relatively small areas of the world-economy, which we may collectively call the core zone. The less profitable nodes tend to have their units of economic activity more geographically dispersed, most of these units being located in a much larger area we may call the peripheral zone. But while core and periphery are terms of geographical origin and geographical consequence, they are not used here primarily as spatial terms, but rather as relational terms. A core-periphery relation is the relation between the more monopolized sectors of production on the one hand and the more competitive on the other, and therefore the relation between world capital and world labour; but it is also a relation between stronger capitalists and weaker capitalists. The major consequence of integrating the two kinds of activities is the transfer of surplus-value from the peripheral sector to the core sector, that is, not merely from the workers to the owners but from the owners (or controllers) of the of the peripheral productive activities to the owners (or controllers) of the core activities, the big capitalists.
There are three essential components of the modern world-system. Firstly, the
hegemonial interstate system emerged symbiotically with
capitalist world-economy. On one level this implies the analytical
inseparability of statist and market forms: ‘the
institutions reflecting the needs of [trans-national] class forces operating in
On a deeper structural level, capitalism forms the indispensable economic
context for hegemonic contestation; non-capitalist economies,
because of lower
rates of efficiency, prove unable to sustain modern interstate
Hegemony in the interstate system refers to that situation in which the ongoing rivalry between the so-called ‘great powers’ is so unbalanced that one power is truly primus inter pares; that is, one power can largely impose its rules and its wishes (at the very least by effective veto power) in the economic, political, military, diplomatic and even cultural arenas. The material base of such power lies in the ability of enterprises domiciled in that power to operate more effectively in all three major economic arenas—agro-industrial production, commerce, and finance. The edge in efficiency of which we are speaking is one so great that these enterprises can not only outbid enterprises domiciled in other great powers in the world market in general, but quite specifically in very many instances within the home markets of the rival powers themselves.
Secondly, the political logic of both intra- and interstate actors is
structurally embedded within the operational logic of the entirety
world-system; the correct ‘unit of analysis’ is now understood to be
the totality of the capitalist
Within world-system terms, hegemony refers only to
Situations in which the [competitive] edge is so significant that allied major powers are de facto client states and opposed major powers feel relatively frustrated and highly defensive vis-à-vis the hegemonic power...[However, there is never] any moment when a hegemonic power is omnipotent and capable of doing anything it wants. Omnipotence does not exist within the interstate system. Hegemony, therefore, is not a state of being but rather one end of a fluid continuum which describes the rivalry relations of great powers to each other.
The operational pairing of hegemony with geo-cultural legitimation and the
correlative inter-dependency between hegemony and
dictates that the historically ‘true’ hegemons—the successor
‘commercial republics’ of the UP, UK,
and the USA— be both the
most successful practitioner and advocate of liberalism and free market
economics during its prescribed
period of hegemonic
Hegemonic powers during the period of their hegemony tended to be advocates of global ‘liberalism’. They came forward as defenders of the principle of the free flow of the factors of production (goods, capital and labour) throughout the world-economy. They were hostile in general to mercantilist restrictions on trade, including the existence of overseas colonies for the stronger countries. They extended this liberalism to a generalized endorsement of liberal parliamentary institutions (and a concurrent distaste for political change by violent means), political restraints on the arbitrariness of bureaucratic power, and civil liberties (and a concurrent open door for political exiles).
When reading De Indis, it is often easy to forget what a
revolutionarily capitalistic text it is. Nowhere is this more evident than
of the freedom of the seas (mare
liberum) with the unconditional right of freedom of trade (liberum
commercium). The text’s taxonomic re-classification of the high seas
as legally free directly facilitates the unlimited expansion of free
summum bonum of the embryonic capitalist world-economy. Both mare
liberum and liberum commercium are presented as ‘sign’s
of Holland’s status as successful hegemon, a hegemony legitimated and
governed by natural
We hold that, by the authority of that primary aw of nations whose essential principles are universal and immutable, it is permissible for the Dutch to carry on trade with any nation whatsoever...Consequently, anyone who abolishes this system of exchange [the Portugese], abolishes also the highly prized fellowship in which humanity is united. He destroys the opportunities for mutual benefactions. In short, he does violence to nature herself...In Seneca’s opinion, the supreme blessing conferred by nature resides in these facts: that by means of the winds she brings together peoples who are scattered in different localities, and that she distributes the sum of her gifts throughout the various regions in such a way as to make reciprocal commerce a necessity for the members of the human race.
A more ambitious geo-cultural legitimation of the capitalist world-economy
can scarcely be imagined. Even more crucial is the manner
in which the
conjuncture of the world-economy rhetorically enforces the symbolic validation
of inter-state rivalry; for Grotius,
any breach of liberum commercium
serves as a legal basis of bellum iustum, consistent with the overall
normative framework provided by natural
Holland’s hegemonic function in enforcing the freedom of both the high
seas and international trade is the nexus with the
third element of the
conjuncture: the collective emergence of the Nation-States of western Europe as
the self-regulating intra-hegemonic
‘core zone’ of the world-system,
with the remnants of international society being banished to either the
(Russia; the Ottoman Empire) or the
‘periphery’ (the Americas; the Indian Ocean).
Given slightly different starting points, the interests of various local groups converged in northwest Europe, leading to the development of strong state mechanisms, and diverged sharply in the peripheral areas leading to very weak ones. Once we get a difference in the strength of these state mechanisms, we get the operation of ‘unequal exchange’ which is enforced by the strong states on the weak ones, by core states on peripheral areas.
‘Unequal exchange’, of course, receives formal juridical
expression through the ‘lines of amity’ settlements
totality of the Westphalian interstate system constitutes the material basis of
Grewe’s international legal order and the
juro-discursive subject of
international law. Both the world-system and the world-economy emerged in
cognisable form in the mid-16th century, the exact same
period as the ‘classical era’ of international law. The common
historical denominators that link
all of these phenomena are western colonialism
and European global hegemony, that, through legal geo-culture, perform the
task of governing the capitalist world-economy.
The Nation-State, the primary signifier of both international law and the Grotian Heritage, is, itself, an inherently expansionistic construct, simultaneously the cause and the effect of the political logic underlying the interstate system—the discursive object or ‘field’ of international legal praxis—that created the functional and ‘rational’ necessity of episodic military conflict. world-systems analysis labels this interstate ‘eternal recurrence of the same’ as the ‘Long Cycle’ or ‘periodic hegemony’.
The inter-state structures are governed by a longer cyclical process that we may call the hegemonic cycle. Just as capital accumulation is maximized in the modern world-system when it operates via the media of a partially free market...so it is the case that capital accumulation is maximized when the inter-state structures veer neither towards the extreme of world-empire (a single overarching political structure) nor towards the extreme of the relative anarchy that derives from a situation in which there are ‘multiple great powers’ all of somewhat equal overall strength (military/political/economic/social). The ideal situation in terms of capital accumulation for the system as a whole is the existence of a hegemonic power, strong enough to define the rules of the game and to see that they are followed almost all of the time [i.e. structural and relational power]. When rivalry is replaced by hegemony as [the] systemic condition, it does not mean that the hegemonic power can do anything; but it does mean that it can prevent others from doing things that will significantly alter the rules. The search for hegemony in the interstate system is analogous to the search for monopoly in the world production system. It is a search for advantage never quite totally achieved.
Hegemony involves more than core status. It may be defined as a situation wherein the products of a given core state are produced so efficiently that they are by and large competitive even in the other core states, and therefore the given core state will be the primary beneficiary of a maximally free world-market.
The ‘liberal’ hegemon, in its historically necessary dual role as both as ‘surrogate government’ and enforcer of free trade, or liberum commercium, necessarily produces greater long-term benefits to rival core zone states; the Grotian Heritage serves as the discursive formation of the trajectory of Dutch hegemony, situated within the juro-political landscape of the capitalist world-economy. Thus, for Wallerstein, the grand narrative of the ‘sixteenth century is the story of how Amsterdam picked up the threads of the dissolving Hapsburg Empire, creating a framework of smooth operation for the world-economy that would enable England and France to begin to emerge as strong states, eventually to have strong “national economies”.’ The contending hegemonies of France and Britain in the 18th and 19th centuries, with the concomitant universalisation of the Nation-State form, signified the completion of the transition of the early modern capitalist world-economy to the modern world-system, subordinate not to the world government of territorial empire but to the historically determined system of decentralized and self-regulating global governance. Hegemony determines the nature and the ‘meaning’ of both the world-system and the legal geo-culture that governs it and invests it with juro-political coherence.
Structure: Normative Hierarchy
The central constitutional feature of the early
modern world-system—a decentralized capitalist world-economy that
imperial structures—required a legal geo-culture that was highly
ontological. The geo-cultural landscape of the ‘long’
16th century in fact constitutes the historical
embodiment of the central tenets of Koskenniemi’s groundbreaking
of international legal theory, From Apology to
Koskenniemi, international law is understood as an eternal ‘rhetorical
oscillation’, or ‘migration’,
between two contending poles of
legal speech: statist positivism and anti-statist natural law. Modern
international law emerges from
States but, paradoxically, its meaning and
application is not reduced to these same States because of the imminent risk of
and the subsequent weakening of international public order; therefore,
a constant rhetorical movement to natural law is required
in order to maintain
an adequate degree of law-rule compliance by
perpetual migration may be understood as an alteration between
ontological/normative and non-ontological/non-normative forms
reasoning. In the ‘long’ 16th century,
however, such a binary strategy was not viable as all forms of jurisprudence
were naturalist and, therefore, ontological/normative
to some degree. Therefore,
my own works seeks to expand upon the latent deconstructive potential of David
article ‘Primitive Legal
In Kennedy’s historical taxonomy the Grotian Heritage is classified as one particular example of primitive legal scholarship (c.1500–1648). From a critical theory perspective, De Indis, now unfamiliarly categorised as a ‘pre-modern’ text, may be re-interpreted as a textual expression of a newly emergent form of early modern global governance; an ‘event’ expressing a ‘conjuncture’ contained within a ‘structure’. This structure is the longue duree of TimeSpace within which De Indis invests the totality of the world-system with a normative hierarchy.
Although Kennedy does not employ the term, primitive legal scholarship is a juridical example of the wider discursive formation of Scholasticism.
This method, which was first fully developed in the early 1100s, both in law and theology, presupposes the absolute authority of certain books, which are to be comprehended as containing an integrated and closed body of doctrine; but paradoxically, it also presupposes that there may be both gaps and contradictions within the text: and it sets as its main task the summation of the text, the closing of gaps within it, and the resolution of contradictions. The method is called ‘dialectical’ in the twelfth-century sense of that word, meaning that it seeks the reconciliation of opposites.
Primitive legal scholarship replicates all of the central features of Scholasticism, both in its resolution of analytical and synthetic approaches and in its virtual identification of legal with theological discourse. Accordingly, there is a naturalist-derived collapse of law into morality.
Unlike traditional scholars, primitive scholars do not distinguish between legal and moral authority, national and international law, or the public and private capacities of sovereigns... The primitives develop elaborate distinctions between various types of law—civil, natural, divine, etc., but they are differences of form or concreteness, not of binding power... Similarly, natural law and international law are not distinguished.
International public order is invested with a ‘normative holism’—in James Boyle’s terms, a ‘deep normative order’—that provides international law, as the geo-cultural discourse of such an order, with an underlying and unifying hierarchy of norms.
The primitives do not distinguish municipal law from international law, nor the law which binds sovereigns in their relations with their citizens. The primitive text envisions a single law which binds sovereigns and citizens alike. Propositions of civil law about self-defence are easily transposed into discussions of inter-sovereign relations. Both are governed by the same moral-legal order. Although the primitive may suggest that sovereigns and citizens are bound by different rules (the sovereign may have a higher duty to inquire into the justice of war, for example, than the citizen), he generally does not differentiate between two spheres of legal competence and activity... Such differences as exist seem to flow from differing capacities within a unified moral-legal system.
What Kennedy and Boyle fail to mention, however, is that primitive legal
scholars relied upon two distinct, or ‘competing’ forms of
natural law theory. The Italian Humanist Alberico Gentili (1552–1608)
within the Aristotelian tradition, which classified natural law as
habitus or socialitas, a recurrent or dispositional pattern of
human behaviour (impetus naturalis), universally
For Aristotle and the Civic Humanists of the 15th
century, the universe is grounded upon an anthropocentric form of metaphysics,
which we would label as ‘thin’
‘The natural world is a uniform and harmonious creation in which the
constitution of every individual part reflects the structure
of the hole. Man,
as an integral and exalted part of that world, is built to the same
specifications as the
Other primitive scholars operating within the Scholastic tradition, such as
Francisco Vitoria (1480–1546) and Francisco Suarez
adopt the theocentric approach of Thomism, grounded upon a ‘thick’
ontological classification of ius naturale as a direct emanation of
lex aeterna: ‘Since all things which are subject to divine
providence are regulated by the Eternal law... it is clear that all things
to some degree in that law, in so far as they derive from it a
certain inclination to those actions and aims which are proper to
we witness here is a ‘weaker’ variant of modern law’s
alteration between the ontological and the non-ontological.
Aristotelianism clearly relies upon the transcendental—that is, the true
‘meaning’ of the profane world is
guaranteed by criteria that are
not wholly empirical—it nevertheless places far less reliance than does
Thomism upon the determinant
operation of the supra-sensory realm (i.e.
‘God’). The Scholastic shift to lex aeterna, by contrast,
signifies the transition of ius naturale from the Social to the
‘onto-theological’; De Indis is very much a Scholastic text,
which accords well with J.L. Brierly’s declaration that Grotius was
‘above all else a
And Grotius leaves us in no doubt concerning the inherently theological nature
of his text: ‘The act of commanding is a function
of power, and primary
power over all things pertains to
God, in the
sense that power over his own handiwork pertains to the artificer and power over
their inferiors, to their
Furthermore, the ontological ‘turn’ of Scholasticism facilitates a wholly derivate and un-critical reliance upon classical authority, resulting in the total abnegation of authorial originality, which fits perfectly with De Indis’ almost neurotic obsession with citation.
Primitive Legal Scholarship connects legal authority and doctrinal results in a direct and unproblematic fashion. Specific authoritative propositions about peace, justice or the natural order are linked unproblematically with doctrines. The doctrines are valid because the authoritative propositions are valid. Relatively little energy goes into interpretation—even less into methodological elaboration or argument. Typically, if primitives criticize each other at all, they begin with a statement of their opponent’s doctrinal position and an assertion that it is wrong. They then elaborate a connection between some principle or some authority and their preferred solution, leaving the reader to dismiss the false view once the true connection has been carefully made.
Prima facie, this may appear to invalidate a central component of my
argument; De Indis’ ‘embeddedness’ within primitive
legal scholarship would seem to preclude the applicability of
binary model precisely through the apparent absence of
positivism from primitive legal
argue, however, that even within the ‘primitive’ De Indis
there are discernible traces of the quintessentially modern ‘discursive
oscillation’. The crucial point is that the rhetorical
migration was not
between the meta-level antinomies of positivism and naturalism, but within a
‘micro-’ or ‘restrictive’
oscillation between contending
sub-discourses within naturalism, namely the rhetorical competition between
‘thin’ ontology which directly equate to
Thomist lex aeterna and Aristotelian habitus respectively. In a
sense, there is no ‘true’ Grotian legal ontology; there is only an
and ‘thinning’ of ontology, a
rhetorical effect achieved through this discursive oscillation between the
or antinomies. I read De Indis as being premised upon
four cardinal antinomies, each signifying ‘micro’-shifts between
‘thick’ and ‘thin’
ontology: these are
These discursive oscillations between the respective poles inhabit the specific contours of the world-economy. The 17th century constituted a qualitatively distinct phase within the global evolution of the modern world-system, witnessing the ‘fracturing’ of trans-national legal space and the accompanying birth trauma of the colonialist interstate system. The rise of an authentically ‘inter-national’ plane corresponded to a discursive shift from ‘thick’ towards ‘thin’ ontology, habitus largely—albeit not completely—supplanting lex aeterna over the course of the 18th century. Although Wallerstein has focussed the greater part of his efforts on the late 19th and 20th centuries, the time-frame when the modern world-system attained the zenith of its development under the British and the American hegemonic periods, it is fairly simple to project some of his most critical theoretical insights backwards into the 16th and 17th centuries, the conceptually distinct ‘pre-modern’ phase of the world-economy.
From this perspective, primitive legal scholarship can be interpreted as a logically necessary juro-political construct discursively correlative with the practical requirements of an ‘early’ or ‘primitive’ system of global governance, with the historically requisite form of geo-culture resulting from the violent transition from Portuguese/Iberian to Dutch hegemonic periodicity. A critical deconstruction of De Indis reveals that the foundational precepts of natural law are best understood as an early variant of Universalism, the ubiquitous ‘clusters of rules’, including mare liberum and liberum commercium, as expressions of a normative holistic order. As with the world- system that it seeks to determine, De Indis displays a thoroughly heterogenous concern with the multiversum of legal identities and personalities; the State, although clearly present within the text as the competing hegemons of Holland and Portugal, merely constitute a singular example of trans-national juro-political actor whose actions are strictly governed at all times by the ius naturale that ontologically descends from the universal lex aeternae. The civic, or ‘positive’, law of the State (ius civile), while paramount within its own domain, is both juridically and ontological subordinate to transcendental Universalism. This anti-statist ‘deconstructive heteronomy’ is, in fact, perfectly consistent with the heterogenous logic of the early modern world-system of the ‘long’ 16th century; the ‘State’, as a relative new-comer to the international arena, was merely a recent addition to a host of stock characters. The early modern world-system and, through it, early modern capitalism, although predicated upon a single over-arching division of labour, nevertheless constituted an internally coherent network of multiple polities, not by happenstance but as ‘obverse sides of the same coin.’ Nothing else better exemplifies how natural law performed the function of policing normative holism in the 16th and 17th centuries that liberalism and universalism have performed from the 19th to 21st centuries.
Given the particular configurations of the world-system, natural law, in competition with its main contemporary ideological rival civic humanism, proved itself best adapted to express the juro-political imperatives of a heterogenous modern world-system’s polyarchy of early-state, sub-state, and non-state actors. The de facto hegemonic ‘responsibility’ of global governance devolved upon natural law as the discursive legitimation of trans-national order in the absence of a practicable world-empire/imperium. Precisely because European/core zone hegemony was only commencing in the 16th century, the universal exportation of the Nation-State system had not yet been effected by the time of the Grotian Heritage. Core zone hegemons were, in conjunction with a plethora of non- and pre-State actors, units, territories, and empires (e.g. ‘India’; ‘China’; ‘the East Indies’), effectively belaying the applicability, or even the relevance, of a realist statism.
Grotius’ discursive continuity with the thick ontology of the Scholastic variant of primitive legal scholarship is underlined through his ‘apologetic’ role of legitimating Holland’s position within the world-economy. Like Kennedy, Grewe classifies Grotius as the final representative of a qualitatively distinct early phase of international law—the Spanish Age—corresponding to a unique rhetorical deployment of naturalism.
The most famous name in international law in the Spanish Age remains that of the Dutchman Hugo Grotius. It is, nevertheless, justified to call this epoch the ‘Spanish’ Age of international law because the ideas held by the States which fought against Spain were not only marked by the colour of this age but also entangled in a polemical dependence on Spanish ideas and concepts. Grotius’ famous treatise on the Freedom of the Seas [Mare Liberum] is a classic example of this relationship.
Herein, ‘the colour of this age’ historically corresponds to the political logic of hegemonic periodicity prevailing between ‘Iberia’ (Portugal and Spain) and the United Provinces. Furthermore, the practical medium of global interaction was the world-economy; that is, ‘private’ or ‘economic’ entities, such as the incorporated Regulated or Joint-Stock companies—most notoriously, the VOC—themselves effected vital international political transactions and were, therefore, accredited with either a partial or a plenary form of legal personality. During the Grotian Moment, Holland/UP did not globally construct a single polity (i.e. an ‘empire’), but a multi-polity of both public/political and private/economic sovereignties and quasi-sovereignties. The oligarchic Dutch ‘State’ and its juro-political counterpart the VOC, governed, with variable levels of effectiveness, a plurality of trade-networks, international commercial entities, and military outposts, with all of the most vital of ‘characterising’ statist functions, such as war-making and treaty-signing, being actively shared between them. The rhetorical contours of the allegedly ‘modern’, and ‘progressive’, Grotian Heritage corresponding perfectly to the inherent, and irreducible, pluralism of the early modern world-system; far from serving as the harbinger of some kind of ‘humane governance’, Grotius is the tireless advocate of virtually all of the most ‘illiberal’ characteristics of sixteenth-century global governance, most notably the (quasi-) sovereignty of trans-national trading corporations; the radical privatisation of international political authority and legal personality; the quasi-statist functionality of organised crime; and the furtherance of the colonialist dispossession of Indigenous Peoples.
Conclusion: Ontology as Governance
The translation of De Indis into the
conceptual framework of world-systems analysis yields valuable insights for both
the analyst and the critical legal scholar.
Not only does the Grotian text bear
all four of Franck’s ‘signs’ of international law, but it also
how these signs double as the signifiers within TimeSpace of
a localizable process of hegemonic contestation. The tactical requirements
this hegemonic contestation, in turn, explain the author’s turn towards
the ontology of naturalism as the only viable discursive
basis of the
‘rule legitimacy’ that the hegemonic modern world-system required.
Additionally, this helps us resolve one
of the outstanding issues in Grotian
scholarship. The author’s underlying continuity with primitive legal
scholarship is deductively
inferred from the text’s two signature
characteristics: the attribution of a normative, or holistic, order to
and the constitutional re-formulation of this order in
strict accordance with the operation of the early modern world-system, a global
social system based upon ‘extensive commodity chains of production that
cross multiple political
De Indis systematically expresses the meta-normative
‘language’ of primitive international law as both textual and
thereby legitimising the structural power of Dutch hegemony.
Simply put, the text ‘translates’ the operational requirements
the world-system (practice) into the discursive terms of a highly ontological
form of naturalist jurisprudence (theory).
Kennedy has claimed that he ‘cannot think of another legal discipline’ besides international law ‘in which the basic organising ideas of the liberal state are so visible in the doctrinal structure.’ World-systems analysis demonstrates why this must necessarily be the case; both naturalism and its secular twentieth-century successor, liberalism, form a central pillar of geo-culture, the ideological legitimation apparatus of the interstate system that simultaneously doubles as the operational domain of international law. It is precisely this ‘lingering presence’ of an ontologically grounded rule legitimacy that continues to ‘haunt’ mainstream international legal theory and practice. Thus, when a progressive scholar legal scholar such as Philip Allott proclaims that international law possesses a ‘three-fold social function’, he is not only invoking the deep normative holism of natural law, he is also unconsciously evoking Wallerstein’s notion of geo-culture. For the analyst, ‘liberalism’ signifies national self-determination, developmentalism, the universality of moral and cultural values, the objective nature of science and technology (i.e., an intelligible world-order), progressivism, and democratic governance. Through a series of precise mimetic substitutions—science for recta ratio, universalism for ius naturale—liberalism, as contemporary geo-culture, is able to re-present itself as both the historical successor to and philosophical surrogate of naturalism. Thus, in Allott’s own words
In international law, there is really only one problem, what to do about natural law. In this sense natural law should be understood, not in the religious sense which would be to explain its existence in terms of the divine origin of nature [lex aeternae], but in a secular system. The question raised by natural law is whether it can be said that a legal system, such as international law, should conform to some general underlying pattern or principle, or whether it must be said that the rules of international law must justify themselves in their own terms and in terms of their end-purposes being useful to, and accepted by, States.
The vital link here is, of course, provided by the concept of governance, the ‘command mechanism of a social system and its actions that endeavor to provide security, prosperity, coherence, order and continuity to the system.’ Operationally, governance proves inextricable from legitimacy, the voluntary obedience of the actors in a system to consensus-generated, inter-subjective values. Although not necessarily supported by ‘any legal or constitutional authority’, legitimacy exists wherever some sort of governance system predictably and effectively guarantees the completion of those tasks ‘that have to be performed to sustain the routinized arrangements of prevailing order and that may or my not be performed by government.’ Finally, governance is the mode of political control ideally suited to the practical requirements of the radically heterogenous world-system. The capitalist world-economy requires global governance precisely because the preconditions for global government, or ‘empire’, are absent—an absence that is the outcome of strict historical necessity. For both the analyst and the international lawyer
What we need is a conceptualisation that enables us to penetrate and understand government-like events that occur in the world of states even in the absence of government...Global governance is governing without sovereign authority, relationships that transcend virtual frontiers. Global governance is doing internationally what governments do at home.
The naturalist ontology of the Grotian Heritage bequeaths us a system of
global governance that, through deconstructive critique,
stands revealed as
being as ontological and as anti-positivist as the primitive legal scholarship
from which it descended. As James
N. Rosenau has observed
Such an ontology—and the paradigms that flow from it—should recast the relevance of territoriality, treat the temporal dimensions of governance as no less important than the spatial dimensions, posit as normal shifts of authority to sub-national, trans-national, and nongovernmental levels, and highlight the porosity of boundaries at all levels of governance.
In short, Rosenau’s ontology of global governance is identical to the metaphysical foundation of contemporary geo-culture. The modern world-system, no less than the geo-culture that legitimises it, is a prisoner of its own universalist ontology. This is the domain not only of world-systems analysis but of deconstruction as well.
 Senior Lecturer,
Public International Law, Monash University, Melbourne. The author would like to
thank Ms. Shing Khoo for her valuable
assistance in preparing this text for
 Eric Wilson, The Savage Republic: De Indis of Hugo Grotius, Republicanism, and Dutch Hegemony in the Early Modern world-system (C.1600-1619) (Leiden: Martinus Nijhoff, 2008).
 ‘Concerning the Indies’, but more commonly known as De iure praedae, ‘Commentary on the Law of Prize and Booty.’ For a full length discussion concerning the problematic title of the text, see Eric Wilson, ‘On Heterogeneity and the Naming of De Indis of Hugo Grotius’, The Journal of the Philosophy of International Law, I/1 (2006), 121-41, passim.
 This is, of course, the privilege of the hegemon. ‘The most that can be said about a hegemonic power is that it will seek to construct an international order in some form, presumably along lines that are compatible with its own international objectives and domestic structures.’ John G. Ruggie, “Multilateralism Matters”, in id (ed.) Multilateralism Matters (New York: Columbia University Press, 1993), 1-25 at 25.
 See Wilson, The Savage Republic, chapters four through six, 189-391, passim.
 Biographical excursus in fact proved indispensable to the finished work, despite my original intent to the contrary. ‘Traditional History is concerned with the short time span of biography, of the event. It is not the sort of time which is of any interest to economic or social historians.’ Fernand Braudel, ‘Toward a Historical Economics’, in id, On History (Chicago: The University of Chicago Press, 1980), 83-90 at 86.
 Fernand Braudel, ‘History and the Social Sciences’, in id, On History, 25-54 at 48.
 Anthony Giddens, The Nation-State and Violence. Volume Two of a Contemporary Critique of Historical Materialism (Cambridge: Polity Press, 1985), 161.
 Ibid. 165.
 Ibid. 166.
 Ibid. 170. Emphasis in the original.
 For my own treatment of world-system analysis’ treatment of the ‘problem’ of State and class formation, see Wilson, The Savage Republic, 86-93.
 Giddens makes this same point, although in less hostile terms. For him, Wallerstein’s circulationism puts him closer to Weber than to Marx in offering an ‘essentializing’ definition of capitalism, which is understood as ‘the sale of product in a market for profit’ rather than as the master-sign of a particular configuration of the totality of social/class forces. Giddens, 166.
 For a classic neo-Marxist expression of this view, see Theda Skocpol, ‘Wallerstein’s World-Capitalist System: a Theoretical and Historical Critique’, American Journal of Sociology, 82/5, (1977), 1075-97.
 Giddens, 167. See R.W Connell on this point: ‘Wallerstein repeatedly speaks of struggle and practice, but it is hard to feel them in his more general formulations.’ Cited in Giddens, fn. 22 at 359.
 Ibid. 168.
 See Immanuel Wallerstein, World-Systems Analysis: an Introduction (Durham: Duke University Press, 2004).
 Immanuel Wallerstein, The Uncertainties of Knowledge (Philadelphia: Temple University Press, 2004), 92-3.
 It is important to note that world-system’s continuing focus upon labor, a central component of its broadly neo-Marxist heritage, allows it to continue to operate as a coherent ‘meta-narrative’ while simultaneously escaping the double trap of teleology and determinism through its Braudelian emphasis upon geo-spatial localisation/pluralism. Therefore, Wallerstein is able to ‘re-visit’ the otherwise difficult problem of ‘the grand narrative’ with no serious risk of philosophical incoherence; for a fuller discussion, see below. Once again, the ‘return of Braudel’ proves vital.
 Immanuel Wallerstein, Unthinking Social Science; the Limits of the Nineteenth-Century Paradigm, 2nd edn (Philadelphia: Temple University Press, 2001), 7-22; Immanuel Wallerstein, After Liberalism (New York: New Press, 1995), 1, 49 and 72-122,
 Richard Lee, personal communication with the author. The ‘past five centuries’, of course, is the Braudelian longue duree, or ‘long wave’, of the macro-unit level of analysis, the Modern world-system itself.
 This term is derived from the work of Michel Foucault. See Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977. Edited by Colin Gordon (Brighton: The Harvester Press, 1980).
 Wallerstein, Uncertainties, 148.
 Richard Lee, ‘Structures of Knowledge’, in Terence K. Hopkins and Immanuel Wallerstein (eds.), The Age of Transition: Trajectory of the World-System, 1945-2005 (London: Zed Books, 1996), 178-206 at 202.
 Wilson, The Savage Republic, chapter two, 57-135, passim.
 Wallerstein, Uncertainties, 146.
 Lee, 23.
 A highly unsatisfactory and frequently misleading term that I employ as a generic de-notation of what might be clumsily referred to as ‘post-Marxist French critical theory’.
 An observation that has been made supremely well by Wallerstein’s own part-time open Marxist collaborator Etienne Balibar on Marxism’s failure to self-reflexively understand itself as an ideological construction. For Balibar, ideology ‘points to the element in which philosophy itself is formed, not just as something “unthought” within it, but as a relation to social interests and intellectual difference itself, a relation forever irreducible to a simple opposition between reason and unreason...However, the most flagrant of Marxism’s shortcomings has been precisely the blind spot which is its own ideological functioning, its own idealization of the “meaning of history”, and its own transformation into a secular mass, party and State religion have represented for it.’ Etienne Balibar, The Philosophy of Marx, Trans. Chris Turner (Verso: London, 1995), 120-21.
 In this paper I eschew all attempts to define this term with precision. Wallerstein appears to be deploying the collected writings of Jacques Derrida as a generic term for post-Marxist, or ‘New, Critical Theory’ in general. See fn. 28, above.
 Cited in Immanuel Wallerstein, European Universalism: the Rhetoric of Power (The Free Press: New York, 2006) at 75.
 See Terence K. Hopkins and Immanuel Wallerstein, ‘Capitalism and the Incorporation of New Zones into the World-Economy’, Review, X/5-6, Supp. (1978), 763-79.
 Eric R. Wolf, Europe and the Peoples Without History (Berkeley: University of California Press, 1997), 3-23.
 Wallerstein, World-Systems Analysis, 21.
 Wilson, The Savage Republic, 60-3.
 Wallerstein, European Universalism, passim.
 Wallerstein, Uncertainties, 69.
 Wallerstein, European Universalism, 48.
 Wallerstein, Uncertainties, 47.
 Wilson, The Savage Republic, 72-109, passim.
 Wallerstein, European Universalism, 82.
 Wallerstein, World-Systems Analysis, 12.
 As with ‘post-structuralism’, ‘critical legal scholarship’ eludes precise definition. I a using the term here in a rather simple sense, indicating the professional legal scholar who is employing the categories of Critical Theory in elucidating the nature, object, and purpose of international law.
 Wallerstein, European Universalism, 39.
 Wallerstein, World-Systems Analysis, 21.
 Not surprisingly, the overriding political goal of post-colonialism—emancipation—necessarily imposes strict limits to the degree of its direct engagement with deconstruction.
 Wallerstein, European Universalism, 48-9. Emphasis added. For Wallerstein’s critical engagement with Edward Said’s Orientalism, see ibid, 34-49.
 For the standard contemporary account of this argument, see Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Pres, 2004).
 Thomas Franck, ‘Legitimacy in the International System’, in Martti Koskenniemi (ed.), International Law (New York: New York University Press, 1992), 157-211 at 158-59.
 ‘The legitimacy of a rule, or of a rule-making or rule-applying institution, is a function of the perception of those in the community concerned that the rule, or the institution, has come into being endowed with legitimacy: that is, in accordance with the right process.’ Ibid. 163.
 Ibid. 157.
 Ibid. 162.
 Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, Cambridge Review of International Affairs, 17(2), 2004, 197-218 at 198-99.
 Ibid. 199.
 See Wilson, The Savage Republic, chapter one, 17-56, passim, but especially 51-6.
 Ibid. chapter six, 349-91, passim.
 Gary Ulmen, ‘Towards a New World Order: Introduction to Carl Schmitt’s The Land Appropriation of a New World’, Telos, 109 (1996), 3-27 at 17-19.
 Described in Hugo Grotius, [De Indis] De Iure Pradae Commentarius. Comentary on the Law of Prize and Booty, trans. Gwladys L. Williams and Walter H. Zeydel (Wildy & Sons: London, 1964), 306–17. See also C. G. Roelofsen, ‘Grotius and State Practice of His Day’, Grotiana, NS 10 (1989), 3–46, passim, and Martine van Ittersum, ‘Hugo Grotius in Context: Van Heemkerck’s Capture of the Santa Catarina and its Justification in De Jure Praedae (1604-1606)’, Asian Journal of the Social Sciences, 31/3 (2003), 511-48 at 514–20 and 526–34.
 The Catarina was condemned as ‘a good and just’ prize by the Dutch Admiralty Court on 9 September, 1604. J.H.W. Verzijl, The Law of the Maritime Prize (Part IX–C of International Law in Historical Perspective) (Dordrecht: Kluwer, 1992), 10. See Van Ittersum, ‘Hugo Grotius in Context’, passim.
 See Wilson, The Savage Republic, chapter five, 261-347, passim.
 Neils Steensgaard, Carracks, Caravans and Companies: The Structural Crisis in the European-Asian Trade in the Early 17th Century (Denmark: Studentlitteratur, 1973), 244–45.
 Van Ittersum has usefully discussed the multi-faceted juro-political nature of the text, which unevenly combines elements of both legal memorandum and political pamphlet.
Although De Jure Praedae cannot be called a legal brief in the
technical sense of the word-it is half theory, half apology—the manuscript
the classical principles of forensic rhetoric formulated by
Cicero and Quintilian. Its representation of events always serves to
Dutch trade and privateering in the East Indies.
Van Ittersum, ‘Hugo Grotius in Context’, 513–4. It has been conclusively shown that De Indis was never actually submitted in the pleadings concerning the Santa Catarina. C. G. Roelofsen, ‘Some Remarks on the “Sources” of the Grotian System of International Law’, Netherlands International Law Review, 30 (1983), 73–80, passim.
 This interpretation has been powerfully critiqued by Martine van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595–1615) (Leiden: Brill, 2006), 167–77.
 From the perspective of the VOC, the Admiralty verdict of lawful prize
had settled all the legal aspects of the case. They realized, however, that
it would take more than a verdict to win widespread political
support for their
cause, both domestically and internationally. They needed Grotius to advertise
Portuguese iniquity to an audience
that was not privy to Amsterdam courtrooms or
the assembly hall of the Estates of Holland—potential allies like the
France and England, for example, and the Estates of Utrecht,
Overijisel, Gelderland, Friesland and Groningen.
Van Ittersum, ‘Hugo Grotius in Context’, 524.
 Nigel Purvis, ‘Critical Legal Studies in Public International Law’, Harvard Journal of International Law, 32/1 (1991), 81-127 at 112.
 Or, merely cynically ‘assert’?
 Ibid. 113. See Shirley V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’, European Journal of International Law, 5/3 (1994), 313–25, passim.
 On the spatial demarcations of world economies and world systems, see Fernand Braudel, The Perspective of the World (vol. iii of Civilization and Capitalism 15th – 18th Century) (New York: Harper & Row, Publishers, 1984), 21–45.
We may deduce that a world-economy is a sum of individualized areas, economic
and non-economic, which it brings together; that it
generally represents a very
large surface area (in theory the largest coherent zone at a given period, in a
given part of the globe);
and that it usually goes beyond the boundaries of
other great historical divisions.
 Hendrik Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change (Princeton: Princeton University Press, 1994), 34–57.
 Ibid. 109–29.
 Ibid. 130–50.
 Ibid. 118–20 and 172–78.
 Ibid. 114–17.
 See below.
 Roelofsen, ‘Grotius and State Practice of His Day’, 16 and 44–6.
 Roelofsen, ‘Some Remarks on the “Sources” of the Grotian System of International Law’, 79.
 In essence, it is an indispensable prerequisite for hegemony that the hegemonic State be the single most successful in both manipulating and regulating the global capitalist economy. In other words, in addition to being the most militarily powerful, the hegemon must necessarily be, in both absolute and relative terms, the most successful free-market nation. The historical ‘paradox’ of Iberia was that both Portugal and Spain militarily succeeded in establishing the material parameters of the world-system but failed to achieve the requisite degree of systemic capitalist transformation, both nationally and globally.
 George Modelski and William R.Thompson, Seapower in Global Politics, 1494–1993 (London: Macmillan Press, 1988), 4.
 Geoffrey Parker, ‘Europe and the Wider World, 1500–1750: the Military Balance’, in James D. Tracy (ed.), The Political Economy of Merchant Empires (Cambridge: Cambridge University Press, 1991), 161–95, passim.
 Immanuel Wallerstein, ‘The Inter-State Structure of the Modern world-system’, in Steve Smith, Ken Booth and Marysia Zalewski (eds.), International Theory: Positivism and Beyond (Cambridge: Cambridge University Press, 1996), 87-109 at 99. ‘The great technological “revolution” between the fifteenth and eighteenth centuries were artillery, printing and ocean navigation... Only the third—ocean navigation—eventually led to an imbalance, or “asymmetry” between different parts of the globe.’ Fernand Braudel, The Structures of Everyday Life: the Limits of the Possible (vol. i of Civilization and Capitalism 15-18th Century) (New York: Harper & Row Publishers, 1981), 385. Intriguingly, Otto Hintze has argued that national reliance upon maritime forces, or ‘Navalism’, facilitates State development through pre-empting the emergence of Absolutism.
A military system whose centre of gravity is in sea power will influence the
organization of the State in its own peculiar way, different
from the way of the
Continental military system [that incorporated the ‘failed’ hegemons
of Iberia and, arguably, France].
Land forces are a kind of organization that
permeates the whole body of the State and gives it a military cast. Sea power is
a ‘mailed fist’ reaching out into the world; it is not suitable
for use against some ‘enemy within’... Land
forces have stood since
the beginning in more or less intimate alliance with the propertied classes;
they still carry something of
a feudal tradition in them. Sea power lacks all
feudal vestiges. To an eminent degree it serves the interests of trade and
Its place is with the modern forces in life, simply by virtue of the
vital importance that technology and capital have in its development.
is allied with progressive forces, whereas land forces are tied to conservative
Otto Hintze, ‘Military Organization and the Organization of the State’, in id., The Historical Essays of Otto Hintze, ed. Felix Gilbert (Cambridge: Cambridge University Press, 1975), 180-215 at 214.
 Philip E. Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge University Press, 2001), 69.
 Wallerstein, ‘The Inter-State Structure of the Modern-World System’, 99–100:
In each case [of hegemonic transition], the sea(/air)-power defeated the
land-based power. In each case, the power committed to maintaining
structure of a capitalist world-economy won out against the power that was
pushing in the direction of transforming the
system into a world-empire [i.e.,
territorialism]. In each case the thirty years’ war itself was the
decisive factor in achieving
the necessary marked superiority in productive
efficiency within the World-Economy as a whole and in particular relative to the
rival [Portugal/Venice; Holland/Portugal-Spain; England/France;
USA/Germany-Japan]. In each case, the war itself increased enormously
military strength of the putative hegemonic power. And in each case, the drive
to achieve hegemonic status had been a very long
process, stretching over many
decades at least. The end of each thirty years’ war marked a significant
stage in the contraction
of the inter-state system: the Treaty of Westphalia,
the Concert of Europe [Utrecht; Vienna], and the United Nations. Each time,
hegemonic power sought to create an order in the system that would guarantee its
economic advantage over the long
 See Wilson, The Savage Republic, chapter four, 189-261, passim.
 Grotius, De Indis, 345. For the ramifications of this ‘Infidel alliance’, see Wilson, The Savage Republic, chapter eight, 467-512, passim.
 The Santa Catarina.
 Given the context of the Dutch Revolt, presumably this refers to Flanders, the Netherlands, and Germany.
 Ibid. 349–50. See also, ibid. 350–1.
 Purvis, ‘Critical Legal Studies in Public International Law’, 89.
 Giovanni Arrighi, ‘The Three Hegemonies of Historical Capitalism’, Review, 13/3 (1990), 365–408 at 375.
 Robert Gilpin, War & Change in World Politics (Cambridge: Cambridge University Press, 1981), 131.
 Wihelm G. Grewe, The Epochs of International Law (New York: Walter de Gruyter, 2000), 32.
[My] starting point was the history of modern international law, and [my]
endeavour not so much the systematic presentation of that
history as its
morphological division, its periodisation, and the development of a system of
typological concepts. This task has
been seriously neglected in the study of
international law up to the present day  in contrast to the situation in
who study politics and constitutions find themselves...By contrast,
the establishment of typological concepts in international law
is still so
underdeveloped that, when one speaks of ‘classical international
law’, one can by no means be certain of
being properly understood.
 See Eric Wilson, ‘ “Much Wailing and Gnashing of Teeth”: On the Loneliest Superpower and the Flailing of Impotent Limbs’, Monash University Law Review, 29/2 (2003), 410–16, passim.
 Grewe, 275. ‘Historically, every approach in the past to a world society has been the product of the ascendancy of a single power.’ Edward H. Carr, The Twenty Year’s Crisis 1919–1939: An Introduction to the Study of International Relations (London: Macmillan, 1954), 232.
 Giovanni Arrighi and Beverly J. Silver, ‘Introduction’, in id. (eds), Chaos and Governance in the Modern World System (Minneapolis: University of Minnesota Press, 1999), 1–36 at 26–27.
 Grewe, The Epochs of International Law, 7.
The political and international legal programmes of the modern European
States were all, however, expressions of ideologies of national
stronger the leading position of the particular predominant power, the more that
State marked the spiritual vision
of the age, the more its ideas and concepts
prevailed, the more it conferred general and absolute validity on expressions of
nationalist expansionist ideology.’
 Kenneth M. Waltz, A Theory of International Politics (Reading: Addison-Wesley, 1979), 16.
 ‘One exists only when fixed in definite relations of domination.’ Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmondsworth: Penguin Books, 1979), 291.
 Immanuel Wallerstein, The Capitalist World-Economy (Cambridge: Cambridge University Press, 1979), 37.
 Grewe, The Epochs of International Law, 137–275.
 Immanuel Wallerstein, The Modern World-System I: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (New York: Academic Press, 1974), 20.
 Ibid. 184.
 A ‘sub-world’ system does not have to be truly global, merely ‘larger than any juridically-defined unit.’ Wallerstein, The Modern world-system I, 15. The European world system, however, was unique among all of the various sub-systems of the world in being subject to an inherently unlimited expansionism. See Robert Bartlett, The Making of Europe: Conquest, Colonization and Cultural Change 950–1350 (Princeton: Princeton University Press, 1993), 5–23 and 243–68.
 William H. McNeill, The Pursuit of Power: Technology, Armed Force, and Society Since A.D. 1000 (Chicago: University of Chicago Press, 1982), 63–116, passim; Edwin S. Hunt and James M. Murray, A History of Business in Medieval Europe, 1200–1550 (Cambridge: Cambridge University Press, 1999), 87–90.
 See Giddens, 13.
 Giovanni Arrighi, ‘The Three Hegemonies of Historical Capitalism’, Review, 13/3 (1990), 365–408 at 372.
 See Wilson, The Savage Republic, chapter seven, passim.
 ‘If there has ever been a state whose executive met the Communist Manifesto’s standard of the capitalist state (‘but a committee for mapping the common affairs of the whole bourgeoisie’) it was fifteenth century Venice.’ Ibid. 373. For Braudel, ‘to say central zone or capitalism is to talk about the same reality.’ Braudel, The Perspective of the World, 57.
 Grewe, 19–22; Herbert Butterfield, ‘The Balance of Power’, in Herbert Butterfield and Martin Wight (eds), Diplomatic Investigations: Essays in the Theory of International Politics (London: George Allen & Unwin, 1966), 132-48 at 133–8; J.S. Watson, The Evolution of International Society: A Comparative Historical Analysis (New York: Routledge, 1992), 160–2.
 ‘The balance of power among the emerging dynastic states of Western Europe was instrumental in preventing the logic of territorialism from nipping in the bud the rise of capitalist logic within the European system of rule.’ Arrighi, ‘The Three Hegemonies of Historical Capitalism’, 373–4.
 Ibid. 374: Enough “ money circulated in the richer Italian towns to make it possible for citizens to tax themselves and use the proceeds to buy the services of armed strangers [mercenaries]. Then, simply by spending their pay, the hired soldiers put these monies back into circulation. Thereby, they intensified the market exchanges that allowed such towns to commercialise armed violence in the first place. The emergent system thus tended to become self-sustaining”.
 Wallerstein, ‘The Inter-State Structure of the Modern-World System’, 88.
 Immanuel Wallerstein, The Politics of the World-Economy: the State, the Movement, the Civilizations (Cambridge: Cambridge University Press, 1984), 33.
 Ibid. 38–9. ‘The earlier winners in the struggle for world leadership owed a significant proportion of their success to their ability to obtain credit inexpensively, to sustain relatively large debts, and generally to leverage the initially limited basis of their wealth to meet their staggering military expenses.’ Karen A. Rassler and William R. Thompson, War and State-Making: the Shaping of the Global Powers (Boston: Unwin Hyman, 1989), 89.
 Wallerstein, Modern World-System I, 3–8.
 Otherwise, the hegemon would constitute an empire.
 Wallerstein, The Politics of the World-Economy, 39.
 ‘Hegemony...refers to that short interval in which there is a simultaneous advantage in all three economic domains’ of the agro-industrial, commercial, and financial/banking.’ Ibid. 41.
 Ibid. 41.
 Grotius, De Indis, 218. Emphases added. For a full length discussion, see Wilson, The Savage Republic, chapter four, 189-260, passim.
 See below.
 Immanuel Wallerstein, The Capitalist World-Economy (Cambridge: Cambridge University Press, 1979), 18.
 See Wilson, The Savage Republic, 25-7.
 Wallerstein, ‘The Inter-State Structure of the Modern-World System’, 89.
 Wallerstein, The Modern world-system II: Mercantilism and the Consolidation of the European World-Economy, 1600-1750 (New York: Academic Pres, 1980), 38.
 Wallerstein, The Modern world-system I, 199.
 Martti Koskenniemi, From Apology to Utopia: The Structures of International Legal Argument (Helsinki: Lakimieslitton Kustannus, 1989).
 To show that an international law exists, with some degree of reality, the modern lawyer needs to show that the law is simultaneously normative and concrete—that it binds a State regardless of that State’s behavior, will or interest but that its consent can nevertheless be verified by reference to actual State behavior, will or interest.
 David Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law Review, 27/1 (1986), 1-98.
 Koskenniemi, From Apology to Utopia, 52–83.
 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), 131. See ibid. 141–2.
 Kennedy, ‘Primitive Legal Scholarship’, 7–8.
 James Boyle, ‘Ideals and Things: International Legal Scholarship and the Prison-House of Language’, in Martti Koskenniemi (ed.), International Law (New York: New York University, 1992), 121-53. Here, of course, ‘deep’ signifies ‘ontology’.
 Kenedy, ‘Primitive Legal Scolarship’, 8.
 Anthony Pagden, ‘The Preservation of Order: The School of Salamanca and the Ius Naturae’, in F. W. Hodcroft et al. (eds.), Mediaeval and Renaissance Studies on Spain and Portugal in Honor of P.E. Russell (Oxford: Society for the Study of Medieval Language and Literature, 1981), 155-66 at 159.
 See Wilson, The Savage Republic, chapters three and four, 137-260, passim.
 Pagden, ‘The Preservation of Order’, 157; Jeanine Quillet, ‘Community, Counsel and Representation’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c.350–c.1450 (Cambridge: Cambridge University Press, 1988), 520–72 at 528–31.
 Pagden, 159.
 J.L Brierly, The Law of Nations: An Introduction to the International Law of Peace (Oxford: Clarendon Press, 1995), 19. For an earlier expression of these views, see Eric Wilson, ‘Mare Liberum and Opinio Juris: A Grotian Reading of the North Sea Continental Shelf Cases’, Monash University Law Review, 28/2 (2002), 299-326, passim.
 Or, Providence, the master-signifier of universal lex aeternae.
 Grotius, 8.
 Kennedy, ‘Primitive Legal Scholarship’, 5–6.
 Ibid. passim. On this very point, See David Kennedy, International Legal Structures (Baden-Baden: Nomos Verlags-geschellschaft, 1987), 203, for his discussion of Grotius and Selden.
In their self-assured tone and in their moral and political certainties,
these debates seem archaic and antiquated, even quaint. They
seem to belong to a
different form of society, a barter society of rural yeomen, a society in which
free individuals encountered
each other in simple, human interactions: in short,
the world ideologically portrayed in the great contractarian social theories
the Renaissance and Enlightenment. Our moral and intellectual interest is
stirred by these debates, though their archaism makes
our practical relationship
to their ideas, at best one of
 Wilson, The Savage Republic, chapters five and six.
 Ibid. chapter three.
 Ibid. chapter four.
 Ibid. chapter seven.
 Carl A. Hanson, ‘The European “Renovation” and the Luso-Atlantic Economy, 1560–1715’, Review, IV/4 (1983), 475–530 at 476–87.
 This was finalized in Vattel’s ‘proto-positivist’ doctrine of ius voluntarium. Arthur Nussbaum, A Concise History of the Law of Nations (New York: The Macmillan Company, 1962), 156–64; Grewe, 358–60 and 374–7.
 See Wilson, The Savage Republic, chapter four, 189-260, passim..
 Although space does not permit an extended discussion, it is interesting to note that the two pioneering nation-states of the ‘Scientific Revolution’, a pivotal event in geo-culture of the Modern world-system, were the first two successful hegemons, the United Provinces and the United Kingdom. One must wonder whether the epistemological prejudices of both primitive legal scholarship and early modern Science constituted a unified geo-cultural phenomenon.
 Wallerstein, ‘The Inter-State Structure of the Modern-World System’, 89.
 See Wilson, The Savage Republic, chapters three and four, 137-260, passim.
 A surreptitiously selective edited version of C. XI of De Indis, published separately in 1609. For discussion, see Wilson, The Savage Republic, 405-16.
 Grewe, 24.
 See, for example, Richard Falk, ‘The Grotian Quest’, in Falk et al (eds.), The Future of the International Legal Order. Volume One: Trends and Patterns (Princeton: Princeton University Press, 1969), 36-42, passim.
 See Wilson, The Savage Republic, chapter eight, 467-512, passim.
 Wallerstein, ‘The Inter-State Structure of the Modern world-system’, 87-8.
 David Kennedy, ‘International Legal Education’, Harvard International Law Journal, 26/2 (1985), 361-84 at 378.
 ‘(1) Law carries the structures and systems of society through time, (2) Law inserts the common interest of society into the behavior of society-members, and (3) Law establishes possible futures for society, in accordance with society’s themes, values and purposes.’ Philip Allott, ‘The Concept of International Law’, in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford: Oxford University Press, 2000), 69-89 at 69.
 Wallerstein, After Liberalism, 49.
 Philip Allott, ‘Language, Method and the Nature of International Law’, British Yearbook of International Law, 45 (1971), 79-135 at 100.
 James N. Rosenau, Along the Domestic-Foreign Frontier: Explaining Governance in a Turbulent World (Cambridge: Cambridge University Press, 1997), at 145.
 Anne-Marie Slaughter, ‘Governing the Global Economy Through Government Networks’, in Michael Byers (ed.), The Role of Law in International Politics International Relations and International Law (Oxford: Oxford University Press), 177-206 at 195-6.
 James N. Rosenau, ‘Governance, Order and Change in World Politics’, in James N. Rosenau and Ernst-Otto Czempiel (eds.), Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992), 1-29 at 4.
 Ibid. 6.
 Laurence S. Finkelstein, ‘What is Global Governance?’, Global Governance, 1 (1995), 367-72 at 368 and 369.
 James N. Rosenau, ‘Toward an Ontology for Global Governance’, in Martin Hewson and Timothy J. Sinclair (eds.), Approaches to Global Governance Theory (Albany: State University of New York Press, 1999), 287-301 at 288-89.